COMMISSIONER OF SALES TAX Vs. SHUKLA TRANSPORT BRANCH

JUDGEMENT

(1.) The Revenue has filed the present revision against the order of the Tribunal by which the dealer has been exempted from the levy of tax as they are not covered within the definition of "dealer" as laid down in section 2 (c) of the U. P. Sales Tax Act, 1948. The dispute relates to assessment year 1978-79 and the alleged dealer carries on the business of transportation of goods. The assessing authority on the basis of survey conducted on April 5, 1980, in which certain account-books and certain note books were seized, initiated proceedings under section 7 (3) of the Act. The dealer failed to furnish any explanation in respect of the adverse material and as such the assessing authority took the view that the opposite party is a dealer and carried on his own business. The adverse material indicated that sales and purchases were done during the year 1978-79 of brass and aluminium wares, scrap of sohaga and accordingly taxable turnover was determined at Rs. 12 lacs by order dated January 17, 1984. According to the assessing officer, at the time of survey on April 5, 1980, the account books did not contain full and correct particulars of the parties and as such the consignment could not be verified. Since the provision of section 12-A shifts the burden of proof on the assessee, the assessee failed to give satisfactory explanation and as such the assessee had conducted the business of purchase and sale through the registered dealers. The Assistant Commissioner (Judicial), Sales Tax, by order dated April 4, 1984, allowed the appeal and quashed the order of the assessing authority and held that the opposite party is not a dealer as defined under the Act. Before the Assistant Commissioner (Judicial), it was alleged that merely because the assessee failed to give full particulars of the dealers whose names were mentioned in the account books and whose goods were transported, would not lead to the conclusion that the opposite party is a dealer. The only adverse material that was found in the survey dated April 5, 1980, was the consignment note book containing the names of the dealers and the freight paid by them. No goods were found in the stock of the opposite party. The assessing authority did not make any effort to ascertain or enquire from the dealer whose names and addresses were mentioned in the consignment note book. On the other hand some of the dealers have filed affidavits that the opposite party deals in transportation of goods. Thus in the absence of any material to establish any sale or purchase by the opposite party he cannot be treated as a dealer. The Assistant Commissioner (Judicial), Sales Tax, after recording these findings allowed the appeal and the assessment orders were set aside. In revision, the Tribunal has affirmed the findings of the Assistant Commissioner (Judicial), Sales Tax, and dismissed the appeal of the Revenue by the impugned order. Learned Standing Counsel has assailed the impugned order alleging that the burden of proving the existence of the circumstances to bring out the case from the purview of the definition of "dealer" lay on the assessee. In accordance with section 12-A of the Act the assessee failed to discharge the burden by giving satisfactory explanation with regard to the adverse material and, as such in accordance with the provisions of section 28-A he shall be treated to be a transporter, who has conducted business unless contrary is proved. In my opinion, the provisions of section 12-A lay the burden to prove on the assessee to furnish explanation to the adverse material but in the present case the adverse material contained in the consignment note book was merely the names of the dealers and freight paid by them and on this material no adverse inference can be drawn against the opposite party and treat these entries for purchase and sale in the conduct of business. The presumption raised under the circumstances, is rebuttable presumption but it is not expected that the opposite party will furnish proof of the negative fact that he is not a dealer and explain these entries in that context. Under the facts and circumstances of the case in my opinion the opposite party has discharged his initial burden by bringing on record such material that he has not conducted any business and the names of the dealers were in connection with transportation of goods business. Moreover, in this case the adverse material does not contain any such particulars which may lead to any adverse inference and thus the Tribunal has not committed any error of law in not treating the opposite party as a dealer. The impugned order does not suffer from any illegality or infirmity. The revision is accordingly dismissed. The opposite party shall be entitled to costs which are assessed to at Rs. 200. Petition dismissed. .